A 2021 survey indicated that more than two-thirds of happily married couples are unsure about what happens to their estate in the event of a divorce. Furthermore, 37% of those questioned believed that their former spouse would no longer be entitled to any part of their estate after a divorce.
It is widely known that marriage invalidates any Will made before the marriage was legalised. However, what is less known is that a divorce does not invalidate a Will made prior to the separation taking place.
Divorce consists of two parts: the notice of divorce through the Decree Nisi and the formal and final separation once the Decree Absolute is issued. If a person were to die without a valid or updated Will reflecting the intention of divorce, a significant portion of their assets would still pass to the spouse, even if there is an intention of divorce through the Decree Nisi.
During the divorce process, updating a Will often becomes a secondary concern while other matters such as property and child custody are addressed. However, this is also a significant point to get right because if it is not addressed, the old Will remains in effect.
In other words, the former spouse would still be entitled to a portion of the estate if a new Will is not made. This is not an ideal scenario for couples going through a separation. If either partner fails to make a Will, they will be treated as having died intestate. If there are no children, the entire estate would pass to the former spouse. If there are children, the spouse would keep the first £270,000 of the estate, as well as all personal possessions. The remainder of the estate would then be divided in half, with one half going to the spouse and the other half divided equally among the children.
If a Will is made but not updated prior to divorce, it would pass to the former spouse in the proportion stated in the Will. This unfortunate scenario can easily be avoided by creating a new Will that excludes any mention of the former spouse. Another scenario that may arise is the sudden death of a spouse during the divorce proceedings. If this occurs without an updated Will in place, the couple would still be considered married at the time of death, and therefore, the surviving spouse will inherit according to the initial Will made during the marriage.
People often cite uncertainty about their financial position after separation as the reason for not updating their Will during divorce proceedings. However, it is advisable to establish a temporary Will that states the desired distribution of the estate. Once the final position is known, the Will can be revisited when the full extent of the estate is known after the divorce. It is also suggested that when drafting the updated Will, assets that do not usually pass through a Will, such as life policies, death benefits, and pensions, be reviewed, and any nominated beneficiaries be updated accordingly. Otherwise, the ex-spouse may remain as the named recipient, as people incorrectly assume that this automatically changes once the separation has been finalised through the Decree Absolute and following the divorce.
The information above also applies to civil partnerships.
This is not legal advice; it is intended to provide information of general interest about current legal issues.